Citation NR: 9726069
Decision Date: 07/29/97 Archive Date: 08/06/97
DOCKET NO. 95-36 515 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to special monthly pension based on the need for
regular aid and attendance.
ATTORNEY FOR THE BOARD
Bernie Gallagher, Counsel
REPRESENTATION
Appellant represented by: Catholic War Veterans of the
U. S. A.
INTRODUCTION
The appellant had active service from December 1942 to
November 1945.
This matter comes before the Board of Veterans’ Appeals (the
Board) on appeal as a result of a rating decision in August
1995 by the Department of Veterans Affairs (VA) regional
office (RO) in New Orleans, Louisiana.
The Board observes that there was no local representative
from the Catholic War Veterans. However, the national
representative did submit an informal hearing presentation.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has been advised by both VA and
private physicians that he is legally blind. The eyesight in
his right eye is decreasing and he is unable to distinguish
figures on the television screen. He is receiving aid and
attendance from a long time friend who performs most of the
tasks of daily living. He maintains that he needs a hip
replacement. He stresses that the regulations do not require
that all the disabling conditions enumerated be found to
exist before a favorable rating may be made.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against entitlement to a special monthly pension
based on the need for regular aid and attendance of another.
FINDINGS OF FACT
1. The appellant has been found to be permanently and
totally disabled.
2. The appellant is able to care for himself and to engage
in the activities of daily living. He is able to finger
count at one foot with the left eye and has corrected visual
acuity greater than 5/200 in the right eye.
3. The appellant is not a patient in a nursing home or
helpless or blind or so nearly helpless as to require the
regular aid and attendance of another person.
CONCLUSION OF LAW
The need for a special monthly pension based on the need for
regular aid and attendance has not been established. 38
U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. §§ 3.351(b) and
(c), 3.352, 4.79 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran is rated permanently and totally disabled for
pension purposes based on arteriosclerotic heart disease with
prior myocardial infarction, evaluated as 100 percent
disabling, bilateral macular degeneration, evaluated as 50
percent disabling, and a hip replacement, evaluated as 30
percent disabling. He has also been granted special monthly
pension based on housebound status under 38 C.F.R.
§ 3.351(d)(2).
On a VA examination in June 1995, the examiner reported that
the veteran could see 26/100 in the left eye and 24/100 in
the right eye. He complained that his eyes were very poor,
he had angina at times, and his hips hurt all the time.
There were no restrictions noted involving the upper and
lower extremities. He had no deficits in weight bearing and
propulsion and no limitation of the cervical, thoracic, and
lumbar spine. In regard to protecting himself from the
hazards/dangers of daily environments, the only danger
reported was very poor eyesight. The examiner reported that
the veteran watched television during a typical day although
he wondered what he could see. He stated that the veteran
could come and go if someone drove him. He could walk 75
feet alone but then needed to rest. No mechanical aid was
needed for ambulation and the veteran was able to leave his
home or immediate premises whenever he desired. The
diagnoses were arteriosclerotic heart disease with prior
myocardial infarction and right hip prosthesis for ten years.
In October 1995, the veteran received an examination from a
Dr. Murphy. The veteran’s visual acuity was reported as
20/200 for the right eye and 20/400 for the left eye. The
diagnosis was severe macular degeneration. The prognosis was
poor. Dr. Murphy stated the visual acuity will not get any
better.
In October 1995, the veteran underwent an examination to
determine his need for regular aid and attendance by a Dr.
Christian. He reported that the veteran was able to walk,
travel, care for the needs of nature, feed and dress himself,
bathe himself, get out of bed, and remain out of bed all day.
He was also able to get out of doors and take exercise,
although this was limited because of his weak heart. The
diagnosis was severe macular degeneration, left eye worse
than right.
The veteran received a VA examination in October 1995. He
had come to the examination with a friend because he was not
able to drive the past two years. He complained that he
could not see and could not read. The findings were similar
to the above examination. Diagnoses were congestive heart
failure, coronary artery disease, and status post total hip
replacement on the right side. On a VA eye examination at
that time he complained of gradual and progressive
deterioration of vision in both eyes. On examination, the
right eye was 10/400 (5/200), improved to 20/100 (5/25) with
glasses. Field-of vision showed generalized constriction
with central area of scotoma. The left eye had finger
counting at one foot and no improvement with glasses. The
diagnosis was advanced age-related macular degeneration, both
eyes.
In December 1995, the veteran was examined by a Dr. Fuller
who reported the veteran’s vision was 20/80 per hand motion.
Hand motion was at 3 feet for the left eye. He reported that
the veteran could perform all of his personal functions
except drive a car. He stated that the veteran had bilateral
macular degeneration and that the prognosis for improvement
was nil.
The veteran was also examined by a Dr. Wagar Khan in December
1995. He indicated the veteran could not drive a car,
travel, or care for the needs of nature but he could perform
all of his other personal functions.
Analysis
The appellant has submitted evidence which is sufficient to
justify a belief that his claim is well grounded. 38
U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1
Vet.App. 78 (1990). Furthermore, the appellant has been
accorded VA examinations and has presented private medical
reports, and his case has been adequately developed for
appellate purposes by the RO.
A veteran of a period of war who is permanently and totally
disabled and who is in need of regular aid and attendance or
is housebound is entitled to additional pension. 38 U.S.C.A.
§ 1521 (West 1991). A person is considered to be in need of
regular aid and attendance if such person is (1) a patient in
a nursing home or (2) helpless or blind, or so nearly
helpless or blind as to need or require the regular aid and
attendance of another person. 38 U.S.C.A. § 1502(b) (West
1991). The regulations provide that for pension purposes, a
veteran shall be considered in need of regular aid and
attendance if he is (1) blind or so nearly blind as to have
corrected visual acuity of 5/200 or less in both eyes, or
concentric contraction of the visual field to 5 degrees or
less; or (2) is a patient in a nursing home on account of
mental or physical incapacity, or (3) establishes a factual
need for aid and attendance under the criteria set forth in
38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c) (1996).
Factors which are considered in determining the factual need
for aid and attendance are: the inability of the veteran to
dress or undress, or to keep himself ordinarily clean and
presentable; frequent need of adjustment of any special
prosthetic or orthopedic appliances which by reason of the
particular disability cannot be done without aid; inability
of the claimant to feed himself through loss of coordination
of upper extremities or through extreme weakness; inability
to attend to the wants of nature; or incapacity, physical or
mental, which requires care or assistance on a regular basis
to protect the claimant from hazards or dangers incident to
his or her daily environment. Furthermore, being bedridden
will be a proper basis for determining need for aid and
attendance. 38 C.F.R. § 3.352(a) (1996). It is not required
that all of the disabling conditions be found to exist before
a favorable rating may be made. The performance of the
necessary aid and attendance by a relative of the veteran
rather than by a paid care provider will not prevent the
granting of the additional allowance. 38 C.F.R. § 3.352
(1996).
It is clear from the medical evidence of record that the
appellant is severely impaired as a result of his
cardiovascular disability and his hip disorder. In addition,
he has problems as a result of his bilateral macular
degeneration. However, the regulatory standard for
eligibility for additional pension based on the need for the
aid and attendance of another person is rigorous. In the
appellant's case, there is no evidence that he is bedridden.
On the contrary, he is ambulatory and it appears that he is
able to engage in most if not all of the activities of daily
living without assistance. In particular, he can feed,
dress, and undress himself and keep himself ordinarily clean,
and the majority of the reports indicated that he could
attend to the needs of nature. There is one private medical
report in which the examiner checked the box indicating that
the veteran could not attend to the needs of nature, but that
is one report of six, and it is unsupported by any objective
evidence or any contentions of the veteran. The Board finds
that the preponderance of the evidence indicates that the
veteran is able to attend to the needs of nature. He is not
shown to require any special prosthetic or orthopedic
appliances requiring assistance to adjust. He is not shown
to need regular assistance to protect himself from the
hazards of daily living. He is not a patient in a nursing
home.
With regard to his poor vision, he has been described as
legally blind by various doctors. However, reference to the
VA rating criteria must be had in order to determine whether
the veteran is blind according to the criteria that must be
applied by the Board. In order to meet the criteria
permitting payment of additional pension based on the need
for regular aid and attendance, the veteran must be so nearly
blind that his corrected visual acuity in both eyes is 5/200
or less. See 38 C.F.R. § 3.351(c)(1). Loss of use or
blindness of one eye, having only light perception, will be
held to exist when there is inability to recognize test
letters at one foot and when further examination of the eyes
reveals that perception of objects, hand movements or
counting fingers cannot be accomplished at 3 feet. 38 C.F.R.
§ 4.79 (1996). In this case, the veteran was shown on VA
visual examination in October 1995 to have only finger
counting at one foot in his left eye, thereby meeting the
rating schedule requirements for blindness in one eye. On
that same VA examination, the veteran’s vision in the right
eye was 10/400 (5/200), improved to 20/100 with glasses.
Accordingly, he does not meet the criteria established by
Department regulations of blindness in both eyes, as his
corrected visual acuity in the right eye is better than
5/200.
The Board notes that the veteran has correctly pointed out
that it is not required that he meet all of the criteria
listed under 38 C.F.R. § 3.352(a) for determining the factual
need for aid and attendance. However, the preponderance of
the evidence provides no support for a determination that he
meets any of the criteria. The Board recognizes the
veteran’s contention that his report to the VA examiner that
he watched television was incorrectly interpreted by the RO.
It is recognized and conceded that the veteran may listen to
television programs rather than watch them. The fact that he
listens to television has no bearing on the Board’s
determination that the preponderance of the evidence is
against finding a factual need for aid and attendance.
The preponderance of the evidence being against the veteran’s
claim, it must be denied.
ORDER
Entitlement to special monthly pension based on the need for
regular aid and attendance is denied.
J. SHERMAN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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